BILL ANALYSIS Ó SENATE COMMITTEE ON TRANSPORTATION AND HOUSING Senator Jim Beall, Chair 2015 - 2016 Regular Bill No: SB 868 Hearing Date: 4/5/2016 ----------------------------------------------------------------- |Author: |Jackson | |----------+------------------------------------------------------| |Version: |3/28/2016 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant|Randy Chinn | |: | | ----------------------------------------------------------------- SUBJECT: State Remote Piloted Aircraft Act DIGEST: This bill establishes rules on where and how remote piloted aircraft (i.e., drones) may operate. ANALYSIS: Existing federal regulations require all drone owners to register their drones with the Federal Aviation Administration (FAA). Commercial drone operators, but not recreational drone operators, must also obtain FAA authorization, which is granted on a case-by-case basis. Existing law establishes a Division of Aeronautics within the California Department of Transportation (Caltrans). This bill: 1)Prohibits the operation of a drone in the following circumstances without consent of the property owner or manager or Office of Emergency Services (OES), as specified: a) Within 500 feet of critical infrastructure designated by the OES, unless the operator is an FAA authorized commercial operator who does not interfere with the operation of the critical infrastructure; b) Within 1,000 feet of a heliport; c) Within five miles of an airport; d) Within any other area where Caltrans or OES determines that drone usage creates an imminent danger to public SB 868 (Jackson) PageB of? health and safety; e) Within the airspace of the state park system; f) Within the airspace of lands or waters managed by the Department of Fish and Wildlife; and g) Within 500 feet of the State Capitol or other building housing state legislative offices and chambers, unless the operator is an FAA-authorized commercial operator who does not interfere with the operation of the critical infrastructure. 1)Prohibits the operation of a drone in a manner that: a) Interferes with manned aircraft; b) Is prohibited by federal statute or regulation; c) Is careless or reckless and endangers life or property; d) Constitutes a nuisance under section 3479 of the civil code; e) Violates an individual's right to privacy under the California constitution; and f) Constitutes trespass under California law. 1)Prohibits the weaponization of drones. 2)Authorizes operating a drone: a) Above any property to which the drone operator has a right of entry. b) Above state property if the operator has received a permit from the California Film Commission. c) In any airspace deemed necessary by the operator to avoid imminent danger to the life and safety of another person or the public. 1)Requires: a) Every commercial operator of a drone to procure adequate protection against liability. b) Every drone to give way to manned aircraft. c) Every drone operator to comply with all licensing, registration, and marking requirements of the FAA. 1)Caltrans: a) Shall develop rules and regulations to enforce these provisions and shall cooperate with the federal government and other political subdivisions in California. b) May represent the state in drone matters before federal and other agencies. c) May participate as plaintiff or defendant or intervenor SB 868 (Jackson) PageC of? on behalf of the state. d) May assist political subdivisions and their law enforcement agencies with the regulations. e) May enforce these rules and regulations by injunction or other legal process in federal, state, and local courts. Violations of Caltrans' rules and regulations are subject to a fine of not more than $1,000 or imprisonment by not more than six months, or both. Appeals of these violations shall be made to the California Transportation Commission. OES is authorized to adopt regulations regarding the prohibition against operating drones within 500 feet of critical infrastructure or in any other area where unrestricted drone operation presents an imminent danger to public health and safety. Operation of a drone in violation of the prohibition against operation in the state park system shall be enforced exclusively by the Department of Parks and Recreation. Violations are either misdemeanors, punishable by up to 90 days in jail, or a fine of up to $1,000, or both; or infractions punishable by a fine of up to $1,000. Operation of a drone in violation of the prohibition against operation above lands or waters managed by the Department of Fish and Wildlife shall be enforced exclusively by that department. Violations are misdemeanors. Operation of a drone in violation of the prohibition against operation above the State Capitol and related buildings shall be enforced exclusively by the California Highway Patrol (CHP). Violations are misdemeanors. The provisions of this bill are severable. If any part of this bill is found to be invalid, the remaining parts of the bill are unaffected. COMMENTS: Author's statement. According to the author, the development of small unmanned aircraft systems (i.e., drones) promises to revolutionize the way Californians interact with each other and their environment. However, the lack of clear rules governing the use of this emerging technology threatens to harm California's natural resources and undermine public safety. To SB 868 (Jackson) PageD of? date, the lack of regulation has led to disputes between neighbors concerned about invasions of their privacy, impacts to wildlife, near collisions with airplanes and helicopters, interference with firefighting efforts, and accidents injuring innocent bystanders. Some individuals are reportedly modifying drones to carry weapons, and, in at least one instance, a drone was used to land radioactive material on the roof of a government building. Commonsense rules are needed to ensure that drones are used in a safe and responsible manner, consistent with the values of the people of the state of California. Background. Moving beyond hobbyists and the military, drones are increasingly a part of commercial and recreational activities. In fields as diverse as agriculture, filmmaking, electric utility service, and public safety, drones can monitor, track, and provide surveillance in many useful and previously undoable ways. Amazon and Google are experimenting with using drones to speed package delivery. Drones have become easier to use and have become less costly. This, combined with improved cameras and sensors, has caused drone sales to take off, so to speak. The FAA estimated that 1 million drones would be sold during the 2015 Christmas season. Compared to 2014, the Consumer Electronics Association estimated that drone sales would increase by 63% in 2015. Drones will play an increasingly visible role in our future. They will be used by many businesses and government entities to do their jobs better and more efficiently, and they'll be used by our friends and neighbors for recreation. They will also be over our heads, whether in the park, at the mall, or in our backyards. The remarkable growth in drone usage creates issues. Foremost is public safety, as drones can imperil aircraft, as recent incidents with commercial aviation and forest fire-fighting aircraft demonstrate. The FAA has noted that, "Incidents involving unauthorized and unsafe use of small, remote-controlled aircraft have risen dramatically. Pilot reports of interactions with suspected unmanned aircraft have increased from 238 sightings in all of 2014 to 780 through SB 868 (Jackson) PageE of? August of this year (2015)."<1> The safety of the public on the ground is also potentially at risk, as drones can crash, be mispiloted, or simply malfunction. Drones can also be used for harmful purposes, as in the case of transporting contraband into prisons or as a means for conveying explosives or other dangerous materials. And there are the more conventional concerns about privacy and nuisance behavior. Current drone regulation. The FAA does not permit commercial drone operation except on a case-by-case basis. However, in February 2015, the FAA proposed regulations on commercial drone users. Among the proposals was a 55-pound weight limitation, line-of-sight operation, maximum airspeed of 100 mph, a ban on operation over any people, a maximum operating altitude of 500 feet, and training and licensing for the operator. Those rules have not been finalized but are expected by mid-year. In December 2015, the FAA required commercial and recreational drone users to register their drones. Nearly 300,000 drone users registered within the first 30 days, according to the FAA. This is modest success given the more than 1 million drones in use. Several California local governments have enacted their own drone regulations. In October 2015, the City of Los Angeles enacted drone regulations similar to the FAA proposal. In December, the city filed the first criminal charges under the ordinance, citing two individuals for operating a drone which interfered with a Los Angeles Police Department air unit, causing it to change its landing path. In northern California, the Golden Gate Bridge, Highway and Transportation District banned drones near the Golden Gate Bridge after a drone crashed on the roadway. Jurisdiction. The dividing line between state and federal jurisdiction of drones is fuzzy. The most recent and directly relevant guidance is perhaps the December 17, 2015, fact sheet issued by the FAA's Office of the Chief Counsel, cited above. It notes that "a navigable airspace free from inconsistent state and local restrictions is essential to the maintenance of a safe and sound air transportation system." Quoting the fact sheet, "Laws traditionally related to state and local police power - --------------------------- <1> FAA Office of the Chief Counsel; "State and Local Regulation of Unmanned Aircraft systems (UAS) Fact Sheet"; December 17, 2015. SB 868 (Jackson) PageF of? including land use, zoning, privacy, trespass, and law enforcement operations - generally are not subject to federal regulation." Cited examples include prohibiting drones from being used for voyeurism, prohibitions on using drones for hunting or fishing, and prohibitions on attaching weapons to drones. The fact sheet notes that mandating equipment or training for drones related to aviation safety would likely be preempted by federal law. State drone registration requirements are barred. Other areas are less clear. Operational restrictions on drones, including altitude and flight paths, operational bans, and any regulations of navigable airspace are areas where consultation with the FAA is recommended by the Fact Sheet. Many of the provisions of this bill create no-fly zones and impose operational restrictions, which fall into this jurisdictionally unclear area, neither clearly authorized nor clearly preempted. As noted above, the fuzzy jurisdictional lines have not prevented the City of Los Angeles and the Golden Gate Bridge, Highway and Transportation District from imposing their own rules. Caltrans. This bill requires the development of implementing regulations by Caltrans. While this may seem an odd assignment, within Caltrans resides the Division of Aeronautics, a 25-person unit which deals with siting, planning, and inspection issues at public-use airports. These are airports open to the general public, such as Sacramento Executive Airport, and do not include the large commercial airports, such as Sacramento International Airport. Caltrans is the only state agency with any dealings or familiarity with the FAA and is therefore the best, though imperfect, fit for these regulatory duties. Insurance requirement. This bill requires every commercial drone operator, and any person using, operating, or renting a drone with the permission of a commercial operator, to procure liability insurance. The amount of insurance shall be determined by Caltrans, after a public hearing, at a level necessary to provide adequate compensation for liability or damages incurred involving operation of a drone. Recreational and other non-commercial drone operators are not required to obtain insurance by this legislation, although many may have coverage through existing homeowners' insurance policies. SB 868 (Jackson) PageG of? Commercial liability insurance is generally broadly encompassing, and large commercial businesses carry such coverage or have deep enough pockets to cover most liability or damages. More risky are small or new businesses which may not carry adequate insurance for the potential risks they pose to the public. Enforcement. The most difficult issue in the bill is enforcement. Policing no-fly zones or tracking down nuisance or dangerous drones is exceedingly difficult, given their mobility and small size. Moreover, despite the federal requirement, many, if not most, drones do not have individual identifying markings. Locating the operator of an anonymous captured drone would be very challenging, given that the operator may be hundreds of yards away in any direction. This bill provides enforcement authority to Caltrans, the Department of Parks and Recreation, the Department of Fish and Wildlife, and the CHP, depending on the location of the violation. Violations are misdemeanors which could involve jail time, fines, or both. Opposition. A coalition of drone manufacturers and drone users opposes this bill. They contend that the bill needlessly addresses already prohibited conduct (e.g., eavesdropping and Peeping Tom), creates a new insurance requirement without justification, and is preempted by federal law. The coalition is concerned that this bill will deter future innovation and investment in California in the drone industry. Double-referral. This bill has also been referred to the Senate Public Safety Committee. Related Legislation: SB 142 (Jackson, 2015) - operation of a drone below the navigable airspace overlying the property of another without permission is trespassing. This bill was vetoed by the Governor. SB 170 (Gaines, 2015) - prohibits operation of a drone over a jail. This bill was vetoed by the Governor. SB 271 (Gaines, 2015) - prohibits operation of a drone over a K-12 school campus or the taking of pictures by a drone of a K-12 campus without permission. This bill was vetoed by the SB 868 (Jackson) PageH of? Governor. AB 14 (Waldron, 2015) - established a drone task force to recommend policies regarding drone use. This bill failed passage in the Assembly Transportation Committee. FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes POSITIONS: (Communicated to the committee before noon on Wednesday, March 30, 2016.) SUPPORT: City of West Hollywood OPPOSITION: Academy of Model Aeronautics Association for Unmanned Vehicle Systems International California Chamber of Commerce Consumer Technology Association CTIA - The Wireless Association Small UAV Coalition 3D Robotics DJI GoPro, Inc. Yuneec USA Inc. -- END --